ZONING BOARD OF ADJUSTMENT
August 28, 2008
The meeting was called to order at 7:00 p.m.
Roll Call: Present were Larry Ordway, Chairman; Julie Matthews, Vice Chairman; Robert Loeffler; Cliff Clark; and Dan Lloyd, Alternate (arrived 7:09 p.m.). Peter Bealo and Roderic Cole, Alternate were excused.
Minutes of July 31, 2008
R. Loeffler moved, second by J. Matthews, to approve the minutes of the July 31, 2008, meeting. It was noted that P. Bealo was listed as an alternate in the minutes and that needed to be corrected. There was no further discussion and the vote was 4-0-1 U/A.
L. Ordway noted that there was a four-member board for this meeting and there was hope that a fifth member would soon arrive. He explained the significance of a split vote should that fifth member not make the meeting and offered that any applicant had the right to request an automatic postponement once their case was called.
L. Ordway, noting that there were three (3) home occupations on the agenda for this meeting. He stated that since they all followed the same list of requirements the order of the agenda would be changed so that the home occupations would heard one after the other and before the other matters. L. Ordway asked each applicant for a home occupation to be prepared to offer all the pertinent information.
#08-21: A request from Joseph Pageau, for a special exception under Article X, all sections, to permit a home occupation, namely an office for plumbing, heating and gas fitting business. The property is located at 17 Timberlane Road, Tax Map 68, Lot 60-32-2 in the LDR district.
Joseph Pageau, 17 Timberlane Road, was present for the application and explained that he was looking to have an office in his home for his plumbing, heating and gas business.
The Board reviewed the criteria for the granting of a special exception noting the following:
- The business use would be secondary to the residential use of the property
- The business is permitted under §220-66C
- There are no noxious uses by way of noise, odor, dust, fumes or electrical fluctuations
- Mr. Pageau has owned the home since 2000
- The business will be conducted within the residential dwelling using +/- 10% of the living space
D. Lloyd arrived at 7:09 p.m.
- A small portion of the garage would be used for storage of piping
- Mr. Pageau has a pick-up truck and a trailer
There was a brief discussion regarding the storage of piping in the garage.
J. Pageau noted that the area he intended to use was approximately 100 sq. ft and it was to store his ten-foot (10) long pipe stock. He added that he didn’t have room to store much more than that with his children’s toys and their car.
- The business will not change the residential character of the dwelling
- There is no sign proposed at this time
- Mr. Pageau will be the only employee
- There is nothing being sold, therefore there will be no exterior merchandize displays
- There is sufficient off-street parking, though there will be no customers coming to the home
- There would be no storage of flammable materials in the home. It was noted that PVC cement and a propane torch was stored in the trailer
- It was noted that the trailer was a twelve-foot (12) covered utility trailer
- There are no covenants in the deed that would prevent there from being a home occupation
L. Ordway explained that the home occupation ceased to exist at the sale of the property; was not transferable to other addresses or for other businesses; needed to be renewed every three years; and was subject to random and periodic inspections by the Code Enforcement Officer.
R. Loeffler questions the type of torch stored in the trailer.
J. Pageau answered that he had a small hand torch and a larger acetylene torch.
L. Ordway noted that D. Lloyd had arrived during the hearing and appointed him as a voting member for this evening.
L. Ordway asked if there were any additional questions from the Board. There were none. He asked if there was anyone speaking in favor of or in opposition to the application. There was no one and the hearing was closed.
L. Ordway explained how the meeting would proceed; noting that once a matter was closed there could be no further input. He noted that all matters would be heard, and then there would be a short break after which the Board would make decisions on all cases.
#08-23: A request from Paul Beauregard, for a special exception under Article X, all sections, to permit a home occupation, namely piano lessons. The property is located at 19 Wentworth Ave, Tax Map 24, Lot 7 in the CI district. The owner of record is Richard Maloof.
It was noted for the record that written permission from the property owner had been received as part of the application.
Paul Beauregard, 19 Wentworth Ave, was present for the application. He explained that he would like to offer piano lessons in his home. Mr. Beauregard offered that he offered half hour, hour and hour and half long lesson slot, depending on the student’s age. He noted that he currently has a studio address on Danville Road but that the economy was down and he was looking to cut his expenses, but he could still teach lessons there if he needed to provide a time slot that was beyond what he might be approved for at his home. Mr. Beauregard added that he would like to have some visibility on Wentworth Ave.
L. Ordway asked where students would park at the location.
P. Beauregard explained that there was a twelve-foot (12) driveway in front of the garage, where his car was parked. He added that there was a space provided for drivers to back into and be able to drive off the site, not backing out onto Wentworth Ave.
L. Ordway questioned if there was intended to be a sign.
P. Beauregard offered he would like to put a 2’ X 3’ sign (six (6) sq. ft.) on a tree in the yard.
It was noted for the record the home occupations were not allowed to have a sign greater than three (3) sq. ft.
L. Ordway added that the sign could not be lighted.
P. Beauregard explained that he would like to have a sign similar to the one he has on Danville Road, but scaled down to meet the requirements.
There was a discussion regarding scheduling of classes at the Wentworth Ave location.
The Board reviewed the criteria for the granting of a special exception noting the following:
- The business use would be secondary to the residential use of the property
- The business is permitted under §220-66 A & B
- There are no noxious uses by way of noise, odor, dust, fumes or electrical fluctuations
- The business will be conducted within the residential dwelling using +/- 16% of the living space
- The business will not change the residential character of the dwelling
- Mr. Beauregard will be the only employee
- There is nothing being sold, therefore there will be no exterior merchandize displays
- There is sufficient off-street parking
There was additional discussion of the hours the lessons would be provided.
R. Loeffler suggested that lessons after 8:00 p.m. might be excessive.
J. Matthews asked what the distance was to the closest abutter.
P. Beauregard explained that the closest abutter was +/- 100 feet and that there was a stockade fence. He added that the windows were always kept closed for lessons; noting the room would be air conditioned in the summer months. Mr. Beauregard noted that he used an electric piano for lessons which better enabled him to control the volume. He added that it would be intolerable to himself to have to conduct full days of lessons on a traditional piano.
C. Clark agreed that 8:00 p.m. should be the end of lessons and shouldn’t be a problem for those abutters who would have to work the next day.
After additional discussion regarding the lesson hours it was suggested that, should the application be granted, all lessons would need to be concluded by 8:00 p.m.
P. Beauregard noted that students were offered a discounted rate for being able to take lessons, particularly the hour and half long sessions, during the day.
- There are no covenants in the deed that would prevent there from being a home occupation
L. Ordway noted that all additional requirements, such as renewal, inspections and non-transferability were applicable to all the home occupation applications.
L. Ordway asked if there were any additional questions from the Board. There were none. He asked if there was anyone speaking in favor of or in opposition to the application. There was no one and the hearing was closed.
#08-24: A request from Kirk Walsh, for a special exception under Article X, all sections, to permit a home occupation, namely an office for an assembly business. The property is located at 5 Center Circle, Tax Map 40, Lot 46 in the MDR district.
Kirk Walsh, 5 Center Circle, was present for the application. He noted that he wanted an office for his assembly business in his home; explaining that no machining or fabrication was done on the property and this was just an office, with a computer, for the administrative functions of the business. Mr. Walsh noted there would be no customers, no employees and no sign.
It was noted there were some discrepancies with the floor plan submitted with the application. It was suggested that, should the application be granted, that it be conditioned of submittal of a corrected floor plan that showed the applicant was not using more than 25% of the living space.
K. Walsh indicated that he could meet all the criteria of Article X and noted that his business is permitted under §220-66C.
It was noted for the record that there were no restriction in the deed that was provided with the application.
L. Ordway asked if there were any additional questions from the Board. There were none. He asked if there was anyone speaking in favor of or in opposition to the application. There was no one and the hearing was closed.
#08-22: A request from Jonus Rustani, for a variance from Article V, §220-32J, to permit a structure (shed) within 8 foot of the property line where 15 feet is the minimum. The property is located at 32 Westville Road, Tax Map 27, Lot 47 in the MDR district.
Jonus Rustani, 32 Westville Road, was present for the application. He explained that he would like to replace an existing shed (8’ X 10”), which was falling apart, with a new slightly larger shed (10’ X 12’) and due the shape of his lot was in need of a variance to do so. Mr. Rustani presented pictures of the existing shed; area where he would like to locate the shed; and the closest abutter’s property. He also showed pictures of the shed he would like to have.
L. Ordway noted to the applicant that if he were to replace the existing shed with one of the same size he would not need a variance, adding that there was a need for the variance because the proposed shed was larger.
J. Rustani said that he understood.
There was discussion of the pictures, including the location of a shed, close to the property line, on the abutting neighbor’s property.
L. Ordway asked how long Mr. Rustani’s shed had been located where it is now.
J. Rustani replied that it was 15 to 17 years.
L. Ordway inquired if a permit had been obtained when the shed was initially put up.
J. Rustani responded that he had inquired about at permit, but it was after the shed had been put up and he reported that he had been told at that time to not bother with the permit.
L. Ordway noted that if the variance is granted then the shed cannot be closer to the property line than eight (8) feet.
J. Matthews asked if the proposed shed would be taller than the existing one.
J. Rustani answered that it had more headroom and the additional square footage would allow him to store his riding mower, grill and bikes.
There was additional discussion of what was shown in the pictures.
R. Loeffler asked what the shed would be set on.
J. Rustani replied that it would be on cement blocks.
C. Clark noted that the brochure listed a number of sizes that the shed came in as well as how it was constructed.
L. Ordway asked if there were any additional questions from the Board. There were none. He asked if there was anyone speaking in favor of or in opposition to the application. There was no one and the hearing was closed.
#08-25: A request from Paul & Cindy Boniface, for a variance from Article V, §220-32F.C, to permit a horse barn within 40 feet of the property line where 100 feet is the minimum. The property is located at 33 Cottonwood Road, Tax Map 6, Lot 48 in the LDR district.
Paul Boniface, 33 Cottonwood Road, was present for the application. He explained that he would like to erect a pre-built 10’ X 20’ horse barn, noting the he had been clearing trees on his property in order to have more usable area. Mr. Boniface added that the barn would be places 150’ to the back and left side of his property. He offered that he needed that variance because, despite the fact that his property was over four (4) acres it was only 150’ wide, and went back approximately 800’ in an “L” shaped fashion, so he could not meet the 100’ setback on all side for the horse barn.
R. Loeffler asked how long Mr. Boniface had the horse.
P. Boniface replied that they had the horse twenty-five years.
L. Ordway asked where the horse was currently being kept.
P. Boniface replied that it was kept at Kent Farm, but the costs of boarding the horse were increasing, plus he would like to have the horse closer for his kids to be able to ride.
L. Ordway asked if there was anyway to situate the barn to be able to comply.
P. Boniface noted that the lot went back quite a bit and was a large drop before it leveled off again.
The Board reviewed the tax map of the property and noted there was no other location that the barn could be placed where it would meet all setback requirements.
R. Loeffler asked if Mr. Boniface owned a horse trailer.
P. Boniface replied that he did not and that he used a friend’s trailer.
L. Ordway questioned where the kids would ride the horse, should the variance be granted.
P. Boniface noted that there were connections through the back of his property to State trails that went through Plaistow, Atkinson and Hampstead.
L. Ordway asked if there would be a problem with a corral meeting the setback requirements.
P. Boniface said that he had enough room to put up a 50’ wide by 200’ deep corral while meeting the set back of 50’ from all property lines. He noted that he was removing trees for the corral.
R. Loeffler asked how the waste would be disposed of.
P. Boniface offered that he had people that would be taking it away and that some of it might be spread for fertilizer.
L. Ordway questioned how frequently the manure would be picked up.
P. Boniface said that he wasn’t yet sure he hadn’t had the horse at the house before.
D. Lloyd offered that his neighbors had horses and they had the manure picked up every 3-4 weeks and there were no issues there.
L. Ordway asked how they applicant proposed to get water to the barn.
P. Boniface said in summer it wouldn’t be a problem to run a hose to the barn, but in winter they were going to have to hand carry it.
L. Ordway asked if the manure storage would be above or below ground.
P. Boniface answered that it would be in a vehicle for easier removal.
L. Ordway questioned what the applicant proposed to do to prevent potential rodent and insect infestation.
P. Boniface offered that was why he was removing the trees that he was so that they wouldn’t have a place to live.
L. Ordway inquired if there would be spraying for mosquitoes.
P. Boniface responded that he had mosquito magnets, adding that spraying would be another option.
L. Ordway asked if the area where the barn was to be located was high and dry.
P. Boniface replied that it was, adding that there was a swampy area to the way back of the property.
D. Lloyd asked if hay and feed would always be stored in the barn.
P. Boniface said that it would and that’s why they were putting up a two-stall barn; one stall for the horse and one stall for the hay and feed.
L. Ordway asked if there was anyone speaking in favor of the application. There was no one. He asked if there was anyone speaking in opposition to the application.
Kevin Kelly, 31 Cottonwood Road, offered that he had a few questions and concerns:
- The area that was being cleared and the exact location of the property line
- Why was the land being stripped and what effect would that have on him as abutter as far as dust and possible runoff from the property as the property slopes in his direction
- The house as depicted in the drawing was not a good special representation of the subject property or of his house
There was a brief review and discussion of the drawing that was submitted by the applicant.
- Location of the barn in relation to the wetlands and how the manure and runoff might contaminate them
- His daughter has allergies and her bedroom is located on the side of the house facing Mr. Boniface’s property
- Storage of feed and grain and whether or not it would create a rodent problem which could possibly migrate to his property
- Depreciation of his property value living next door to a horse and whether or not it would limit his marketability
- Would there be one (1) or more horses
- He can smell the horses down the road from him where they were able to put up a barn without the need for variances
- Amount of dust raised by the horses
P. Boniface said that he disagreed about the issue of the property sloping towards the concerned abutter. He offered that Mr. Kelly is located higher than the barn would be. Mr. Boniface added that they would not, and could not, store a lot of hay and feed in the barn, and would use offsite storage for bulk. He offered that he planned to grow grass around the barn and wanted to keep it nice to go with the house.
Leslie Hewett, 29 Cottonwood Road, offered that she had similar concerns as those expressed by Mr. Kelly. She said that she could also smell the two (2) horses that were across the street and that manure was left behind in the street when they were walked. She too noted that the diagram provided wasn’t an accurate depiction of the location of the houses in proximity to each other. Ms. Hewett stated that she was scared of horses and didn’t want to have to deal with the potential of flies and smells, and she didn’t ever expect that she would be living next to a farm. She noted that she was told that there couldn’t be horses there because of the wetlands in the back. Ms. Hewett offered a copy of a portion of the subdivision plan for this neighborhood that shows a conservation
easement.
There was a discussion of the wetlands. It was noted that there were significant wetlands to the rear of the property but well beyond the minimum seventy-five (75) foot buffer that would be required by the Plaistow Wetlands Ordinance.
P. Boniface offered that he had plenty of room to comply with the 100’ set back without going anywhere near the wetlands.
Mark Hewett, 29 Cottonwood Road, asked where the barn was to be situated and how water would get to the barn. He was shown the applicant’s drawing and it was noted that water would be from the house, hand carried in the wintertime, and by hose in the warmer months.
There was no further input and the matter was closed.
The chairman called for a break at 8:12 p.m. The meeting was called back to order at 8:22 p.m.
DELIBERATIONS
#08-21: A request from Joseph Pageau, for a special exception under Article X, all sections, to permit a home occupation, namely an office for plumbing, heating and gas fitting business. The property is located at 17 Timberlane Road, Tax Map 68, Lot 60-32-2 in the LDR district.
J. Matthews moved, second by C. Clark, to approve the request for a home occupation at 17 Timberlane Road.
L. Ordway summarized the application, noting it would be an office only, with a computer and a small amount (100 sq. ft) of pipe storage in the garage.
R. Loeffler noted that it was a large property and the house was remotely set on the lot and not easily visible from the road.
L. Ordway added there was no sign proposed, no customers to the property and no employees, making it a classic home occupation application.
There was no further discussion on the motion. The vote was 5-0-0 U/A.
#08-23: A request from Paul Beauregard, for a special exception under Article X, all sections, to permit a home occupation, namely piano lessons. The property is located at 19 Wentworth Ave, Tax Map 24, Lot 7 in the CI district. The owner of record is Richard Maloof.
R. Loeffler moved, second by D. Lloyd, to approve the request for a home occupation at 19 Wentworth Ave with the following condition:
- All lessons shall be concluded no later than 8:00 p.m.
L. Ordway summarized the application, noting that testimony had been offered that the room, where lessons were conducted, was nearly soundproof with the windows closed and electronic equipment used to monitor the volume. He added that the applicant agreed that the sign would have to comply with the three (3) sq. ft. maximum in order for a permit to be granted.
There was no further discussion on the motion. The vote was 5-0-0 U/A.
#08-24: A request from Kirk Walsh, for a special exception under Article X, all sections, to permit a home occupation, namely an office for an assembly business. The property is located at 5 Center Circle, Tax Map 40, Lot 46 in the MDR district.
C. Clark moved, second by R. Loeffler, to approve the request for a home occupation at 5 Center Circle.
L. Ordway summarized the application noting this was solely for the office for the business; there would be no assembly or manufacturing process on the property; no customers; no employees and no sign.
There was no further discussion on the motion. The vote was 5-0-0 U/A.
#08-22: A request from Jonus Rustani, for a variance from Article V, §220-32J, to permit a structure (shed) within 8 foot of the property line where 15 feet is the minimum. The property is located at 32 Westville Road, Tax Map 27, Lot 47 in the MDR district.
C. Clark moved, second by D. Lloyd, to approve the request for a variance for the location of a shed at 32 Westville Road.
L. Ordway summarized the application noting the request was to replace an existing 8’ X 10’ shed, which was in rough condition and intruding into the setback, with a larger 10’ X 12’ shed that would still intrude into the setback by eight (8) feet. The new shed would be more aesthetically pleasing.
The Board reviewed the criteria for the granting of a variance with the following findings:
- There would be no decrease in surrounding property values as the shed had always been there
- The public’s interest is in the separation of structures, this is a pre-existing situation and not likely to interfere with the public’s interests
- The hardship is in the size and shape of the lot which makes it difficult to locate any structures on the lot without intruding into a setback
- The general public will have no loss or gain by the location of this shed, therefore it would be an injustice to the applicant not to grant the variance request
- The spirit and intent of the ordinance is to relieve congestion and in this specific area it was difficult to not have congestion.
There was no further discussion on the motion. The vote was 5-0-0 U/A.
#08-25: A request from Paul & Cindy Boniface, for a variance from Article V, §220-32F.C, to permit a horse barn within 40 feet of the property line where 100 feet is the minimum. The property is located at 33 Cottonwood Road, Tax Map 6, Lot 48 in the LDR district.
J. Matthews moved, second by R. Loeffler, to approve the request for a variance for the location of a horse barn at 33 Cottonwood Road.
L. Ordway summarized the application reminding that evidence had been heard that it was a large (4+ acre) lot in a development from the 1990’s, and most of the lots were larger than two (2) acres. There is an existing barn in the neighborhood. The applicant is clearing land in anticipation of building the barn and proposes to grass in the areas that he clears. The barn is proposed to be a two-stall, 10’ X 20’ structure for one (1) horse and storage of hay and grain for the horse. The manure is to be removed from the site weekly. There is a question about a “no disturb area” located on the subdivision plan (submitted by an abutter) which will need to be called to the attention of the building inspector before issuing the building permit, should the application be approved.
The Board reviewed the criteria for the granting of a variance with the following findings:
- There would be no decrease in the surrounding property values. The barn is proposed to be 150’ feet away from the house and 100’ away (meeting the applicable set back) from the abutters who expressed concern. There are also other horses in the neighborhood so that kind of damage had already been done.
- The public’s interest is in separation between abutters and the barn and there is adequate (as per the ordinance) separation between this barn and the abutters who had expressed concerns
- The hardship is in the shape of the lot that does not allow for a barn to be placed anywhere and meet all the proper setbacks
D. Lloyd noted that the setbacks could be properly met on the side where abutters expressed concerns and added that the abutter who would be the most impacted by the granting of the variance did not attend the meeting to voice any issues.
R. Loeffler added that the concerns expressed by the abutters in attendance at this meeting, such as allergies, insects and rodents, were all legitimate concerns. He noted that just because an abutter wasn’t present at the meeting didn’t mean there were no concerns.
J. Matthews offered that this would have been the opportunity to express their concerns (the most impacted abutter) if they had any and that there were other ways aside from attending the meeting to do so.
D. Lloyd noted, if the 100’ feet could be met on all sides and no variance would be required, the barn would just be built and the impact to the abutters, who expressed concerns at this meeting, would be the same as it would be if this variance is granted.
R. Loeffler recalled that it was costing the applicant to currently board the horses.
L. Ordway reminded that financial hardships were not to be considered as part of the application.
J. Matthews added that the applicant had the right to reasonable use of his property and the ordinances allowed for horses.
- If the variance is granted it would increase the quality of life for the applicant and possibly cause some discomfort for the abutters. Denying the applicant would not allow him to build his barn would not allow him use of his property as he would like, but would be better for the neighbors
J. Matthews noted that the neighbors were already experiencing the very same thing would from this horse being there, because there were already other horses in the neighborhood.
- The spirit and intent of the ordinance is to provide separation between the barn and the abutters, to keep down the smells, rodents and bugs. It was also reiterated that the corral would meet the minimum setback
D. Lloyd reiterated that the applicant is able to meet the setback on the side where the abutters had expressed concerns and there were no concerns expressed by the abutter on the side where the setback could be met.
R. Loeffler stated again that lack of input from an abutter could not be taken as them not having issues.
The Board re-read the ordinance and noted that the ordinance is to regulate the structure for animals and not specifically to regulate the animals themselves.
There was no further discussion on the motion. The vote was 3-2-0 (Ordway and Loeffler dissenting) and the motion was passed.
There being no further business before the Board the chairman adjourned the meeting at 9:01 p.m.
Respectfully Submitted,
Dee Voss
Administrative Assistant
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